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Sex offender’s home ownership doesn’t impact residency restriction

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A convicted sex offender who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled in Mark Gaither v. Indiana Dept. of Correction, et al.,18A02-1111-MI-1073, that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

 

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  • SOR
    I read and I have the article that states that the Indiana Supreme Court ruled unaniousmly the sex offender registration is punitive (puinishment) therefore it is doublr jeopardy!
  • Rehab
    If someone is convicted of possession of child porn but never did anything else or caused harm to a child or any other person in their 40+ years, what type of rehabiltation do they need? Should they have their eyes poked out?

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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